Opinion
B297940
02-03-2020
THE PEOPLE, Plaintiff and Respondent, v. BERNELL WILLIAMS, Defendant and Appellant.
David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance by Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. A778951) APPEAL from an order of the Superior Court of Los Angeles County, Craig E. Veals, Judge. Affirmed. David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance by Plaintiff and Respondent.
In January 1986, Anthony Hunter (Hunter) and fellow members of the 59 East Coast Crips street gang drove to a liquor store in territory claimed by the rival Bloodstone Villains gang. After Hunter began arguing with a member of the Bloodstone Villains, defendant confronted him. The two argued, defendant produced a revolver from his rear pants pocket, and defendant shot Hunter twice. Hunter died from a single gunshot wound to the chest. Defendant was arrested, read his Miranda rights, and ultimately confessed to shooting Hunter.
Because this case was resolved by plea, we rely on the probation and sentence report for a brief summary of the facts.
The Los Angeles County District Attorney charged defendant in a felony complaint with murder in violation of Penal Code section 187, subdivision (a). The complaint further alleged defendant personally used a handgun in the commission of the offense. Defendant agreed to plead guilty to murder in the second degree and admitted personal use of a firearm under section 12022.5. He was sentenced to a term of 17 years to life.
Undesignated statutory references that follow are to the Penal Code. --------
On January 18, 2019, defendant filed a petition for resentencing under section 1170.95. In that form petition, defendant checked boxes declaring (1) "a complaint . . . was filed against [him] that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine[;]" (2) he "pled guilty or no contest to 1st or 2nd degree murder in lieu of going to trial because [he] believed [he] could have been convicted of 1st or 2nd degree murder at trial pursuant to the felony murder rule or the natural and probable consequences doctrine[;]" and (3) he "could not now be convicted of 1st or 2nd degree murder because of changes made to Penal Code §§ 188 and 189 . . ." Defendant also checked a box declaring he "was convicted of 2nd degree murder under the natural and probable consequences doctrine or under the 2nd degree felony murder doctrine and [he] could not now be convicted of murder because of changes to Penal Code § 188 . . . ."
The court denied the petition, finding defendant "was the actual shooter" and thus was "not eligible for resentencing as he has requested." Defendant appealed.
After examining the record, defendant's attorney filed an opening brief raising no issues. On October 2, 2019, we invited defendant to personally submit a supplemental brief. He responded by filing a two-page brief with discussion of many issues that are not germane to the denial of his section 1170.95 petition, i.e., that the circumstances of the crime supported only a charge of second degree, not first degree, murder; he was manipulated into accepting a plea deal that was not beneficial to him; he did not understand what malice was when he pled guilty; and he wanted to have his plea vacated but his attorney refused to pursue such relief. All of these are unrelated to the substance of defendant's appeal, which is from the denial of his section 1170.95 petition. As a result, these contentions are not properly before us. (Polster, Inc. v. Swing (1985) 164 Cal.App.3d 427, 436 ["[o]ur jurisdiction on appeal is limited in scope to the notice of appeal and the judgment or order appealed from"].)
There are, however, two assertions made that are properly raised in this appeal but meritless. Defendant says his attorney's People v. Wende (1979) 25 Cal.3d 436 (Wende) brief misstates the facts of the crime because it states Hunter was shot twice rather than once in the chest. The record belies defendant's assertion: it demonstrates Hunter was indeed shot twice, though only one of the bullet wounds was the cause of his death. Defendant additionally challenges the denial of his petition for resentencing because malice may not be imputed under section 188 as recently amended (Senate Bill No. 1437 (2017-2018 Reg. Sess.)) and he did not intend, he says, to kill Hunter. Defendant is right that malice cannot be imputed based solely on participation in a crime, but his criminal liability was not predicated on imputed malice. The facts—particularly defendant's admission to personally using a handgun in the commission of the offense and his Mirandized confession—establish defendant was the person who shot Hunter and his guilt does not rest on a natural and probable consequences theory of liability.
Having considered defendant's submission and conducted our own examination of the record, we are satisfied defendant's appellate attorney has complied with the responsibilities of counsel and no arguable issue exists. (Wende, 25 Cal.3d at 441; see also Smith v. Robbins (2000) 528 U.S. 259, 278-82; People v. Kelly (2006) 40 Cal.4th 106, 122-24.)
DISPOSITION
The order denying defendant's section 1170.95 petition is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J. We concur:
RUBIN, P. J.
MOOR, J.